Court Allows DADT Pending Appeal

The military may continue to enforce "don't ask, don't tell" while the government appeals a recent federal court decision striking down the policy as unconstitutional, a federal appeals court ruled Monday.

In a split decision, a three-judge panel of the U.S. court of appeals for the ninth circuit ruled that the "the lack of an orderly transition in policy" could produce "immediate harm" and "precipitous injury" -- echoing arguments made by the Obama administration's Justice Department for allowing the policy to remain in place.

"We also conclude that the public interest in ensuring orderly change of this magnitude in the military -- if that is what is to happen -- strongly militates in favor of a stay," ninth circuit judges Diarmuid F. O'Scannlain and Stephen S. Trott wrote.

In a dissenting opinion, Judge William A. Fletcher wrote that he would have favored a stay of the district court's order in Log Cabin Republicans v. United States of America if the Defense Department were barred from any further discharges of gay service members under DADT.

Dan Woods, lead attorney for the Log Cabin Republicans, which filed the suit in 2004, told The Advocate Monday afternoon that he was reviewing the court's ruling and that he will discuss with his client whether or not to appeal to the U.S. Supreme Court. "I imagine it will be a long shot," Woods said.

However, Woods said he may file a separate motion seeking expedited arguments in the case. The ninth circuit allowed an expedited schedule in California's Proposition 8 case, with oral arguments scheduled for December 6.

Log Cabin Republicans executive director R. Clarke Cooper said in a statement that as a result of the ruling, DADT "will continue to burden our armed forces, undermine national security, and limit the freedom of our men and women in uniform."

Uncertainty over the enforcement of "don't ask, don't tell" has now played out for several weeks since U.S. district judge Virginia A. Phillips issued an injunction against the policy October 12. Phillips, who ruled in September that DADT failed to further military readiness or unit cohesion while violating the constitutional rights of gay service members, denied a Justice Department request for a short stay of her order, but the ninth circuit had allowed for DADT to remain in place at least temporarily while it reviewed attorneys' arguments.

Attorneys for the Log Cabin Republicans had vigorously argued against a continuance of "don't ask, don't tell" pending the government's appeal. "It remains sad and disappointing that the government seeks to continue to enforce 'Don't Ask, Don't Tell' by its motion for a stay pending appeal, even as the President has repeatedly said that the policy 'weakens' our national security and recently said in a 'tweet' that he basically agrees with Judge Phillips's decision," Woods said in a statement last week.

President Barack Obama has repeatedly called for congressional repeal of the 1993 law but has sidestepped questions on whether he personally believes DADT is unconstitutional. During an interview with progressive bloggers last week that included AmericaBlog's Joe Sudbay, the president declined to opine on the law's constitutionality.

"It's not a simple yes or no question, because I'm not sitting on the Supreme Court," Obama said. "And I've got to be careful, as president of the United States, to make sure that when I'm making pronouncements about laws that Congress passed I don't do so just off the top of my head."